مجله حقوقی بین المللی
پیاپی 43 (پاییز و زمستان 1389)

State immunity is a principle in customary international law which bars domesticcourts from hearing civil claims against sovereign states with some exceptions suchas jure gestionis acts, waiver, etc. While the U.S. Foreign Sovereign Immunities Act(1996) generally prevents foreign states from being the subject of lawsuits indomestic courts, the amendments of U.S. Congress to the Act of 1976 exempted thosecountries having unfriendly relations with the U.S.: from this protection have costedIran.Judgments entered under this so-called “terrorism exception” against the Islamic Republic of Iran have been totally more than 12 billion dollars so far, with a number of suits still pending. This article studies various U.S. regulations in this regard and also its inconsistency with the rules of international law and at the same time suggests some probable defences in the U.S. courts which may be applicable in other international courts and Tribunals.

News that a church in Florida in the United States intended to commemorate the September 11, 2001 attacks, by holding what it called “Burn a Quran day”, has shocked reasonable minded persons all over the world. Any rational person could recognize that the public burning of the Quran would ignite strong emotions in Muslims. It was possibly the most insulting act that one could perform and is condemned by many international documents such as the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights and also many other regional and national instruments.Islam is a religion that invites humanity to monotheism, spirituality, fraternity and peace. The right to practice one’s religion means that a person should be able to practice his or her religion without fear that he or she will be persecuted. It is in this context that the burning of the holy Quran constitutes a violation of human rights, specifically the right of Muslims to practice their religion without fear of persecution. While the exercise of free speech is a human right and burning books may be seen as an expression of that right, it should not trump the right to express one’s culture and practice one’s religion. In this article, after examining what has happened in the U.S. in 9/11, the situation is analyzed by focusing on these two rights (Freedom of Speech and Religious Freedom) and their interactions.

Under the Optional Protocol to the International Covenant on Civil and Political Rights, the UN Human Rights Committee has the competence to receive and consider communications from individuals who claim to be victims of violations by a State Party to the Optional Protocol of any of the rights set forth in the Covenant. According to article 5(4) of the Optional Protocol, the Committee shall forward its (final) Views to the State Party concerned and also to the individual. However, the Optional Protocol is silent about the legal effects of these Views. It is unclear whether such Views are binding on the States Parties concerned or they are mere recommendations. The present article examines this issue from a theoretical perspective and in State practice as well.

February and March 2011 were witnesses to widespread peaceful demonstrations by thousands of Bahrainis, lots of them from Shiite majority, who sought political amendments and their right to self-determination. These protests are mostly similar to movements’ wave which has encompassed North Africa. The governing body of Sunnite minority in Bahrain has been trying to confront these protests through severe suppression during which it has been committed various kinds of maltreatments and violence against unarmed protesters especially those who are in Manama. In doing so, arbitrary imprisonment, torture, military trials and murder have been vastly committed by security forces. This article determining the definition of crime of “persecution” as a crime against humanity in international criminal law, has tried to prove this hypothesis that according to press and human rights reports, Bahrain events can reach the threshold of crime of persecution.

The SCSL as a criminal court which belongs to the third generation of international criminal courts was established in 2002. There are a number of unique features about the SCSL as compared to the ICTY and ICTR. The court has been set up by an agreement between the Government of Sierra Leone and United Nations; it was at the invitation of Sierra Leone that negotiations for a court for this country began. This contrasts with the Special Court's predecessors; ICTY and ICTR which have been imposed upon rather than being requested by the countries involved. Unlike the mentioned Tribunals, the SCSL was to sit in the country where crimes under its jurisdiction took place and it would also be a "hybrid tribunal"; a mixed international and national court, whose statute contains provisions under international criminal law, international humanitarian law, and Sierra Leone domestic law, and also its structure ensures a mixture of local and international staff throughout the Court. The mandate of SCSL is to try those persons who bear the greatest responsibility for international and national crimes committed within the territory of Sierra Leone since 30 November 1996, including leaders of RUF, AFRC, CDF and also Charles Taylor, the President of Liberia, who committed these crimes.

This article tries to examine Cooperation Treaties and their impact on the transfer of technology. To this end, the study distinguished between two types of cooperation agreements: those which, because of their indirect effect on technology acquisition, are considered as passive, and those active ones, which have a direct impact on the transfer of technology. The first kind varied on their object and purpose. The most used and popular type of this group of arrangements were the bilateral and multilateral foreign investment agreements. Having examined them, we found that there was no causal relation between those and the transfer of technology. Instead, as available evidences suggested factors such as economic and political stability, national legislation and local market capacity were more powerful than the treaties in attracting foreign capital and technology. Yet, our conclusion was rather optimistic as we believed that such arrangements could have some positive impact although minor and time-consuming on the acquisition of technology. As to the second type of governmental cooperation, our finding was quite different. Accordingly, there was a causal link between the two with some major limitations. Some of these limitations were germane to the conditions under which the donor country required the receiving one to apply (e.g. tied-aid) and some were related to the policy of the former in limiting such cooperation to the extent that it would not impair its competitive and comparative advantages at the regional and global level. The other obstacles were the failure of the receiving state in devoting the requisite resources to the acquisition of technology and the enhancement of its technological capacity. The lack of appropriate governance in the host country was also another impeding factor in attracting the necessary foreign technology.

It was paragraph (c) of Principle VI of the Nuremberg Principles which for the first time shed some light on the logic of prosecution and punishment of crimes against humanity. That logic was originally inspired by the “Holocaust” incident related to the genocide of the Jews based on which the statesmen who had ordered the torturing and ethnic cleansing would have taken criminal responsibility for their acts under international law. In practice, the idea of punishing the perpetrators of international crimes failed many times, until the destiny helped the Zionist regime to punish some of the Nazi leaders with the blessing of the Nuremberg Military Tribunals and their own national courts. However, some of those very crimes against humanity were perpetrated again during the 22 day war on Gaza. In that war conducted by Zionist regime against the oppressed Palestines, 1400 Palestinian citizens were martyred and more than 6000 others, mostly children and women were injured. The logic of international criminal law as well as that of the usurpers, who one day considered themselves as the victims of racism, necessitates that these alleged crimes be adjudicated fairly and the offenders be taken to task and punished. Mr. Goldstone, commissioner for the UN Human Rights Council, for the first time in a detailed report, accused the Zionist regime of committing such crimes as they had alleged to be their victims someday. Today, the emergence of the special International Criminal Tribunals for the former Yugoslavia and Rwanda as well as the International Criminal Court in The Hague have made it possible, more than before, to analyze such crimes and punish their perpetrators under international criminal law.

It is a definite international rule that arbitral awards have nationality, although realization of stateless awards, if their requirements are met, is also possible. The nationality of arbitral awards is distinguished by some criteria among which, the most accepted ones are the Seat and the Applicable Procedural Law. The most significant implications of the nationality of arbitral awards may be outlined as follows: universal situation of arbitral awards with regard to the situation of arbitral awards in the country of origin, especially in terms of its validity and enforceability, and application of determining competent courts to judicial patronage of arbitration process and judicial supervision on arbitration and arbitral awards as well as determining national law of arbitration.

Forced marriage is a kind of sexual violence, which usually happens during armed conflicts. However, what distinguishes this crime from other sexual crimes, just as what was recognized in Appeals Chamber of the Special Court for Sierra Leone in the case Prosecutor v. Brima, Kamara and Kanu is imposing marital status on one or two sides against their wills. In fact these commitments which arose from a semi-marriage relation would involuntarily be imposed and may lead to corporal or mental afflictions on the victims of such marriage. The constitutive elements of forced marriage as a crime against humanity according to customary international law confirms that this crime is comparable with other examples of crimes against humanity, which have been defined in the Statute of the Special Court.